Cuba pushes swap: its spies jailed in US for American contractor held in Havana

In what could be the setting for a gripping thriller, Cuba and the U.S. are reportedly locked in a standoff this weekend, with the fate of an American contractor hanging in the balance. NBC's Michael Isikoff reports.

By Michael Isikoff, NBC News

HAVANA, Cuba — It seems straight out of a Cold War spy movie. A group of Cuban undercover agents sneak into the U.S. and set up a secret pro-Castro network in south Florida — receiving instructions in code through late night radio transmissions from handlers in Havana. But the FBI gets wind, tails the agents, intercepts their messages and busts them, sending the agents off to federal prison, their ringleader for life.

Today, the story of those spies — called La Red Avispa, or the Wasp Network — rolled up by the feds 14 years ago is barely known in the United States. But its members, now known as the Cuban Five, are national heroes in Cuba — the subjects of mass demonstrations, their pictures on billboards and posters – and their petitions for freedom are championed around the world by Nobel Prize winners, celebrities like Danny Glover, even former President Jimmy Carter.

And they may now prove key to the tense impasse between Havana and Washington over the fate of jailed American contractor Alan Gross, arrested three years ago Monday for distributing sophisticated satellite equipment to Cuba’s tiny Jewish community and later sentenced to 15 years in prison for "acts against the independence and/or territorial integrity of the state." (Gross says he was only bringing Internet access to Cuba.)

While the U.S. is demanding that Cuba release Gross, who visitors say is angry and frail, having lost 110 pounds in prison, Cuban officials say they are willing to do so only if President Barack Obama will release the Cuban agents.

"I understand what Mr. Gross is going through," Gerardo Hernandez, 47, the Cuban Five ringleader, said in an exclusive interview with NBC News in October at his current home --a federal prison outside Victorville, Calif. "I understand his sufferings and that of his family. … If an agreement can be reached, to stop the sufferings of six families, then I welcome it."

The idea of a swap — the release of Gross for Hernandez and his confederates among the Cuban Five — faces legal and political hurdles.

An Obama administration official told NBC News that the "imprisonment of Alan Gross, an international development worker, is not comparable in any way to that of the five Cuban agents," noting that the Cubans were afforded their "due process rights" and convicted of serious crimes.

Cuban Five ringleader Gerardo Hernandez

Members of Congress have denounced Cuba for holding Gross "hostage" to the release of the Cuban Five. "The Castro regime has no regard for human rights or international law," said Democratic Sen. Robert Menendez of New Jersey, a senior member of the Senate Foreign Relations Committee and frequent critic of the Castro regime. "The Cuba Five should serve their sentences for spying."

And Hernandez, who sports a trim goatee and displays a hearty laugh despite 14 years in prison, might not make the ideal candidate for a pardon or commutation from Obama — a precondition for a swap to take place. Asked if he regretted any of his actions, he smiled and said, "I regret that I got caught." In a follow up phone interview, Hernandez readily acknowledged that "we violated some U.S. laws" — mainly failing to register as foreign agents with the U.S. Justice Department. "We came here with fake passports. Fake identities." But, he added, "We act out of necessity."

As Hernandez and Cuban officials tell it, the Cuban Five was not sent to spy on the U.S. government. In fact, the members weren’t accused of stealing any U.S. secrets (although they were convicted of conducting surveillance of U.S. military bases.) Instead, the mission of the Wasp Network, they say, was to infiltrate anti-Castro exile groups in South Florida who Havana suspected of plotting terrorist attacks inside Cuba. Among those attacks: the notorious bombing of Cubana Flight 455 over the Caribbean in 1976, killing 73 passengers (including teenage members of a Cuban national fencing team) as well as a string of hotel bombings in Havana in 1997 that killed an Italian businessman and were believed to have been aimed at disrupting Cuba’s nascent tourist industry.

"Cuba doesn’t have drones to neutralize the terrorists abroad," said Hernandez. "They need to send people to gather information and protect the Cuban people from these terrorist actions. … I think it’s the same feeling that Americans have that defend their country and love their country when they go to infiltrate al-Qaida and send information here to avoid the terrorist acts. And the U.S. has to understand that Cuba has been involved in the war against terrorism for 50 years.”

Alan Gross in an undated family photo, left, and in 2012, after losing 110 pounds while imprisoned in Cuba.

While admitting his role in spying on anti-Castro exiles — "I would do it again," he said — Hernandez adamantly denies the most serious charge against him: conspiracy to commit murder. His conviction on that count, which has earned him a life sentence, was based on his alleged complicity in the February 1996 shoot-down by a Cuban fighter jet of two Cessna planes flown by members of the Cuban exile group Brothers to the Rescue, killing four men.

The anti-Castro group had provoked Cuba by dropping anti-government leaflets over Havana. At the trial of the Cuban Five, prosecutors introduced messages between Hernandez and his controllers in Havana suggesting he had prior knowledge of the shoot-down. But Hernandez insists that prosecutors misinterpreted the messages and he knew nothing that wasn’t already public.

"No, sir, absolutely not," Hernandez replied when asked if he knew in advance about the incident. "All I knew was what everybody knew: that Brothers to the Rescue through the years has violated many times Cuban air space, that there have been 16 diplomatic notes from Cuba complaining over that situation."

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Ricardo Alarcon, president of the Cuban National Assembly

Ricardo Alarcon, president of Cuba’s National Assembly (the Parliament) and a longtime Castro confidante, said this week in Havana that "the Cuban government publicly, front page in our papers, months before that incident had warned that we are not going to allow any more intrusions into our air space. … The order, the decision (to shoot down the planes) came from the highest level. Fidel Castro himself had said that publicly, that he was responsible for that decision."

U.S. Appeals Court Judge Phyllis Kravitch of Atlanta concluded in 2008 that prosecutors never proved their case tying Hernandez to a plot to shoot down the planes, but she was outvoted two to one and his conviction on the murder conspiracy charge was upheld. Now Hernandez and his lawyers are appealing on another ground: that hundreds of thousands of dollars in secret U.S. government payments to anti-Castro journalists in Miami — newly discovered through Freedom of Information Act requests — inflamed the Miami community against the Cuban Five and made it impossible for them for them to get a fair trial. The payments were mostly made for appearances on Radio Marti, a TV and radio operation funded by the Broadcasting Board of Governors, an independent agency that oversees international broadcasting sponsored by the U.S. government.

In court papers, lawyers for the Cuban Five have cited articles by some of the journalists, including one that denounced the "genocidal character" of Castro’s regime and another that speculated that the real purpose of the Wasp Network was to introduce "chemical or bacteriological weapons" into south Florida. “"his information was spread throughout the Miami area and helped inflame the community against these guys," said Martin Garbus, Hernandez’ lawyer. "It was total madness. … When the case was brought, the anti-Castro feeling in the Miami area was at a fevered pitch."

U.S. prosecutors dismiss as “implausible” and "unfounded" the idea that the Radio Marti payments were part of a U.S. government effort to influence the jury in the Cuban Five case.

"The jury (in the case) was carefully selected, following a searching voir dire (jury selection process) that the appellate court deemed a high model for a high-profile case, and that the trial comported with the highest standards for fairness and professionalism,” wrote Caroline Heck Miller, an assistant U.S. attorney in Miami, in a court filing in July asking a judge to reject Hernandez’ motion for a hearing into the payments to the journalists. She also noted, as federal prosecutors have repeatedly done when the issue has come up, that “no Cuban-Americans – the audience (Hernandez) hypothesizes as the target of the government campaign he imagines — served on the jury."

Unless Hernandez can somehow persuade a court to reopen his case – or barring a prisoner swap with Gross — he would seem to have few options.

Rene Gonzalez, another member of the Cuban Five who was not convicted of the conspiracy-to-commit-murder charge, was released from federal prison on probation late last year, but has not yet been allowed to return home to Cuba to live.

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Adriana Perez, wife of imprisoned Cuban agent, Gerardo Hernandez

The Cubans are doing their best to ratchet up the pressure. Just as Judy Gross has launched a public relations campaign in the United States to free her husband, appearing at a National Press Club press conference on Friday, this week the Cubans made Hernandez wife, Adriana, available for an interview with NBC News. A chemist in the food industry in Havana, she wept as she described the pain of separation from her husband — and how it has left her unable to bear children. "Every detail, every single moment reminds me of him," she said. "I believe there are many people in the U.S. and the American people as a whole, who could convey to President Obama that there is a woman here suffering."

Hernandez, too, says missing his wife is the hardest part of his life in prison. And he has few illusions about his prospects of being freed. "The only thing I know for sure with me is that I have two life sentences and live with that every day," he said. "And to keep your sanity and your mind, you have to be realistic. But I would be dishonest to say that I don’t have hope."